Is Jack Smith Daring SCOTUS To Terminate His Persecution Of Donald Trump?
Special Counsel Is Choosing A Curious Moment To Go "All In"
Setting aside the unprecedented nature of Jack Smith’s persecution prosecution of Donald Trump, there is no denying that the case itself grows ever more contorted and bizarre.
It was barely two weeks ago that Jack Smith took the remarkable step of informing the court that he intends to introduce evidence from the 2012 and 2016 Presidential elections—potentially seeking to backdoor otherwise inadmissible “character” evidence against Donald Trump.
Now we find Jack Smith seeking to raise the stakes yet again, this time by asking the Supreme Court to preempt a Trump appeal regarding a claim of immunity from prosecution for acts performed while President of the United States.
Special counsel Jack Smith on Monday asked the Supreme Court to take up and rule quickly on whether former President Donald Trump can be prosecuted on charges he plotted to overturn the 2020 election results.
Smith made his request for the court to act with unusual speed to prevent any delays that could push back the trial of the 2024 Republican presidential primary front-runner, currently set to begin March 4, until after next year’s presidential election.
Trump’s claim itself is a remarkable tactic which raises serious questions of Constitutional law. There is no surprise that Jack Smith opposes that claim and seeks to have it squashed. What is surprising is that Smith is seeking to circumvent the appellate process to invoke the final authority of the Supreme Court straight away—if the Court rules against him, his entire case against Donald Trump is permanently ended.
In seeking this “up or down” ruling from the Supreme Court, Jack Smith has chosen a curious moment to go “all in” on his prosecution of Donald Trump. Whether this is another sign of desperation or a sign of confidence in his case I could not say. Whichever it is, this move is a high-risk maneuver which may backfire bigly on the prosecution.
Those who are both pro-Trump and anti-Trump will view this prosecution through their respective lenses and make their respective commentaries. As a matter of full disclosure, I will say now that I view myself as neither pro- nor anti-Trump, but pro-Constitution. My concerns regarding the many prosecutions arrayed against Donald Trump derive from what I see as an unacceptable as well as unconstitutional politicization of the criminal justice process.
For me, Jack Smith’s case against Donald Trump is not really about Donald Trump, but about the efforts of one political party to use the courts to attack and destroy a political opponent.
Even Smith’s initial indictment of Trump on presumed Espionage Act violations to my mind reeked of politics rather than the law.
Regardless of Donald Trump’s merits and demerits as a President, a politician, and a public figure, if there is to be any truth to the presumption that the United States is a nation of laws rather than men, it is imperative that the law not be arrayed against Donald Trump in a partisan and partial fashion. This has not happened, and the political backdrop of the cases is serving chiefly to embed in the public consciousness the perception that ours is a dual-tier system of justice, where laws and legal sanction applies to me and not to thee.
My advocacy here is that Donald Trump and all public figures be held to the same standards of legal conduct as you or I—which is to say that we should not seek criminal sanction against anyone merely for their political views. It is my considered conclusion that such is not happening where Donald Trump is concerned.
For the sake of simplicity, I shall confine myself to addressing only the core question raised in Jack Smith’s petition to the Supreme Court:
whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.
This question arises from a motion Trump’s lawyers filed in October seeking to dismiss Jack Smith’s case against him, on grounds that the actions covered by the indictment were in keeping with Trump’s official duties as President of the United States.
“Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the ‘outer perimeter,’ but at the heart of his official responsibilities as President,” the defense motion states. “In doing so, the prosecution does not, and cannot, argue that President Trump’s efforts to ensure election integrity, and to advocate for the same, were outside the scope of his duties.”
Indeed, the Supreme Court has almost from the founding of the Republic recognized a need to extend an absolute privilege of immunity to government officials actions taken in execution of their official duties. While the ‘outer perimeter’ argument derives from the 1959 case Burr v Mateo1, the core claim of an immunity privilege can be found as far back as the 1838 case Kendall v United States2
The executive power is vested in a President, and as far as his powers are derived from the Constitution, he is beyond the reach of any other department except in the mode prescribed by the Constitution through the impeaching power.
The presiding judge on Trump’s case, Tanya Chutkan, was unimpressed by the arguments, and rejected them outright.
“Former Presidents enjoy no special conditions on their federal criminal liability,” Chutkan wrote. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
Chutkan further delineated between legitimate speech—which is protected by the First Amendment—and utterances made in furtherance of a criminal conspiracy, which are generally considered not speech but action and subject to criminal sanction and prosecution.
Chutkan also rejected Trump’s claims that the indictment violates the former president’s free speech rights. Lawyers for Trump had argued that he was within his First Amendment rights to challenge the outcome of the election and to allege that it had been tainted by fraud, and they accused prosecutors of attempting to criminalize political speech and political advocacy.
But Chutkan said “it is well established that the First Amendment does not protect speech that is used as an instrument of a crime.”
“Defendant is not being prosecuted simply for making false statements ... but rather for knowingly making false statements in furtherance of a criminal conspiracy and obstructing the electoral process,” she wrote.
There surely is no surprise that Trump’s lawyers immediately appealed Judge Chutkan’s ruling.
As a matter of pure public policy, there is much to be said in favor of Judge Chutkan’s basic position—no President, current or former, should ever be considered “above the law.”
However, US law begins with the United States Constitution, and, as Kendall v United States articulated, Presidential accountability begins with the impeachment process. If we apply Kendall uncritically, we might even conclude that before even a former President can be tried for any crime, he must first be impeached.
By this argument, even Smith’s case against Donald Trump for violations of the Espionage Act is fatally flawed because it is first and foremost premature—Donald Trump was impeached twice, and once after his term of office expired, but never for the Espionage Act offenses alleged by Smith. Even before we get into the numerous defects both in the Act itself and in the partial manner of its application over the years, Smith needed to present a case for Trump’s impeachment over those actions and secure a conviction before the Senate before proceeding with a criminal Trial.
Even Fani Willis’ ludicrous charges against Donald Trump in a Georgia State Court arguably are premature, as the Senate has not adjudicated an impeachment charge relating to them.
If we apply the logic of Kendall to these cases, because the Senate has not held an impeachment trial, because the House has not seen fit to vote articles of impeachment related to these cases, they simply cannot stand. No matter how damning the evidences the prosecutors might have assembled against Donald Trump, without that impeachment proceeding, the criminal courts lack jurisdiction to hear the cases.
Nor is this entirely out of bounds with the theory of impeachments envisioned by the Founding Fathers when drafting the Constitution. As Alexander Hamilton argued in Federalist 653, the necessity of impeachments and a court other than the Supreme Court (and the inferior courts established by Congress) arises from the inherently political nature of accusing public officials with any infamous crime—with “high crimes and misdemeanors” to use the Constitutional argot.
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Given the obvious political overtones and ramifications of the prosecutions being pursued against Donald Trump, it is difficult to challenge Hamilton’s logic here. Trump is being prosecuted primarily because he was President and because he is once again seeking to be elected President. Even if the evidences themselves are sufficient in a court of law to secure a conviction, the unavoidable political nature of the prosecutions arguably recommends that the political aspect of the charges be adjudicated before the legal aspects—and the court for that proceeding is the Senate in its role as the Constitutionally-appointed trial court for impeachments as stated in Article I Section 3 of the Constitution.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
If the Supreme Court agrees to hear Smith’s petition for certiorari and decides to rule on this question, if the Court rules against Smith then he will have arguably demolished not only his J6 case against Trump, but also his Espionage Act case and even Fani Willis’ corruption case.
With that one adverse ruling Smith could undo quite a lot of prosecutorial effort, not all of it his. To describe this as a rather large gamble is an understatement!
Yet even if the Court rules against the immunity privilege asserted by Trump’s lawyers, the question he has posed to the Court presents another problem, one which Smith rather cynically attempted to obscure with the wording of his petition: Donald Trump was already tried and acquitted by the Senate for his alleged role in the J6 riot—described by both Smith and the House Democrats in the impeachment article as an insurrection.
The Article of Impeachment passed by the House makes broad and sweeping claims against Donald Trump, including many of the same accusations leveled against Trump in Smith’s indictment.
On January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.
As I have covered previously, this is substantially the same charge leveled by Jack Smith in his J6 indictment of Donald Trump.
This is the crux of the legal matters presented in the indictment: Smith claims he knows Donald Trump’s state of mind in late 2020 and early 2021. Smith claims he can prove what Trump not only “knew” (as in he had been told as much) he had lost the election but that he believed what he had been told was true—despite having mounted numerous challenges to the integrity of the voting in several states.
Both the impeachment and the indictment are for substantially the same activities—specifically, Trump’s assertions, true or false, that the 2020 election was irreparably tainted by widespread corruption and fraud.
Yet Smith chose to get a little cute with the phrasing of his “major question” to be put before the Supreme Court (emphasis mine):
whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.
Smith is being more than a tad disingenuous with that particular word choice. Regardless of how one views Trump’s conduct in the aftermath of the 2020 election and in the run-up to the J6 riots, the absolute unarguable fact is that Trump was not merely “not convicted” but was actually acquitted by the Senate.
A Senate still bruised from the most violent attack on the Capitol in two centuries acquitted former President Donald J. Trump on Saturday in his second impeachment trial, as all but a few Republicans locked arms to reject a case that he incited the Jan. 6 rampage in a last-ditch attempt to cling to power.
Even the heavily biased and propagandistic corporate media could not evade the reality that the Senate failed to secure the two-thirds vote Constitutionally mandated for conviction during an impeachment trial.
This is where the Constitution gets a bit murky. Article 1 Section 3 of the Constitution specifically extends the possibility of criminal liability to those convicted during their impeachment trial.
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
However, Donald Trump is undeniably not “the Party convicted”, but "the Party acquitted”, and Article 1 Section 3 makes no mention of what should happen in cases of an acquittal.
In Donald Trump’s appeal on Presidential immunity, his lawyers argue that acquittal is a bar to criminal prosecution.
Presidential immunity from criminal prosecution for official acts is also rooted in the text of the Constitution. The Impeachment Clauses provide that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate. Here, President Trump was acquitted by the Senate for the same course of conduct.
The Impeachment Clause of Article I provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office … but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” U.S. CONST. art. I, § 3, cl. 7 (emphasis added). Because the Constitution specifies that only “the Party convicted” by trial in the Senate may be “liable and subject to Indictment, Trial, Judgment and Punishment,” id., it presupposes that a President who is not convicted may not be subject to criminal prosecution.
While not explicitly a “double jeopardy” claim, such an argument effectively amounts to the imposition of the Fifth Amendment’s prohibition on double jeopardy.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The theory advanced by Congressional sources4 is that double jeopardy does not attach.
The Senate’s power to convict and remove individuals from office, as well as to bar them from holding office in the future, does not overlap with criminal remedies for misconduct. Indeed, the unique nature of impeachment as a political remedy distinct from criminal proceedings ensures that "the most powerful magistrates should be amenable to the law." Rather than serving to police violations of strictly criminal activity, impeachment is a "method of national inquest into the conduct of public men" for "the abuse or violation of some public trust." Impeachable offenses are those that "relate chiefly to injuries done immediately to the society itself." Put another way, the purpose of impeachment is to protect the public interest, rather than impose a punitive measure on an individual. This distinction was highlighted in the impeachment trial of federal district judge Alcee Hastings. Judge Hastings had been indicted for a criminal offense, but was acquitted. In 1988, the House impeached Hastings for much of the same conduct for which he had been indicted. Judge Hastings argued that the impeachment proceedings constituted "double jeopardy" because of his previous acquittal in a criminal proceeding. The Senate rejected his motion to dismiss the articles against him. The Senate voted to convict and remove Judge Hastings on eight articles, but it did not disqualify him from holding office in the future. Judge Hastings was subsequently elected to the House of Representatives.
Yet there is a potential flaw in the Congressional logic: the example provided is the impeachment case of federal judge Alcee Hastings, who was indicted for a criminal offense, acquitted, and then impeached—the Congress rejected his argument that the acquittal at trial meant he was immune from impeachment owing to the Fifth Amendment prohibition against double jeopardy.
Donald Trump was impeached and acquitted—the Senate failed to convict him of an “abuse or violation of some public trust”, to use Hamilton’s rhetoric. If Trump, in having made allegedly false statements regarding the 2020 election, could not be found to have “abused the public trust” in so doing, by what logic can he therefore be presumed to have committed egregious federal crimes?
Would not any criminal act committed by a sitting President automatically constitute “high crimes and misdemeanors”? To be certain, Article 2 Section 4 of the Constitution specifically mentions two undeniable criminal acts in establishing that a President can be removed from office after an impeachment conviction.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
While it is left to the House of Representatives to define what constitutes “high crimes and misdemeanors”, is it such a leap to suggest that “high crimes” unquestionably include actual statutory offenses? If a President or any civil officer of the United States is acquitted of “high crimes and misdemeanors”, is it a violation of their Constitutional rights to then charge them in criminal court for the same ostensibly criminal offense?
With only three Presidents including Donald Trump ever having been impeached and tried by the Senate, we do not have a superabundance of cases on which to reach a conclusion.
Potentially, President Bill Clinton’s impeachment trial might offer some guidance here: After Special Counsel Ken Starr’s explosive report on Clinton’s conduct surrounding his affair with White House intern Monica Lewinsky was delivered to Congress, the House of Representatives voted articles of impeachment on the strength of that report. The offenses outlined by Starr and contained within the articles of impeachment included perjury and obstruction of justice—undeniable statutory criminal offenses.
Bill Clinton was acquitted by the Senate, and was never tried on the perjury and obstruction of justice charges.
Could he have been charged and tried for perjury and obstruction of justice? Jack Smith would presumably argue in the affirmative. Republican Senator Olympia Snowe, who voted for Clinton’s acquittal, would later state that she believed at least one of the charges against Clinton had been proven, but that a criminal trial rather than impeachment was the proper forum for adjudicating the charge5. Such a perspective would imply that impeachment acquittal ought not to bring on Fifth Amendment prohibitions against double jeopardy.
The issue is thus made murky simply because reasoned and logical arguments exist for both perspectives on impeachment and acquittal.
I will not speculate on how the Court will rule should it take up Smith’s petition for certiorari. As of this writing, it has not even been established that the Court will grant Smith’s petition, in which case Trump’s appeal will have to be heard, at which time one side or the other will have to appeal the case to the Supreme Court.
Yet what we can see from even a cursory view of the cases surrounding executive immunity and impeachment, Smith’s view of Trump’s motion to dismiss is by no means the only plausible interpretation, and Smith’s view of the applicable law might not be the same as that of the Supreme Court.
What we can see from Trump’s motion to dismiss and the relevant Constitutional provisions is that Smith is putting nearly all of the prosecutions currently ongoing against Donald Trump at risk. If Smith loses on the immunity claim both of his cases against Donald Trump as well as Fani Willis’ prosecution arguably are vacated immediately. If Smith loses on the double jeopardy claim, his J6 case is permanently shut down—and very likely any future effort to indict Trump for any offenses arising from his challenges of the 2020 election.
Yet if Trump loses on the immunity and double jeopardy claims, Smith still has to try the case at hand. His evidences are not strengthened by a victory against the immunity claim, nor his case made more apparent.
This is the problematic nature of Smith’s legal maneuvering here. Once again he is taking an outsized risk with little possibility of actual gain at trial. If he loses he loses on the entirety of his prosecutorial effort against Trump, but a victory only defeats Trump on this one motion.
Unlike Smith’s pursuit of questionable evidence from earlier elections, there is little to be divined about the overall strength of Smith’s case from the certiorari petition. If anything, the petition is likely little more than a reflection of Smith’s presumption that there is no Constitutional or legal impediment to proceeding with his case against Trump, and that the trial should proceed unencumbered by seemingly frivolous Constitutional questions.
It will fall to the Supreme Court to decide if Smith’s presumptions about Trump’s motion to dismiss conform to the dictates of the Constitution, or if Trump’s lawyers have the better grasp of what the Constitution requires in impeachment cases.
Barr v. Matteo, 360 U.S. 564 (1959)
Kendall v. United States ex Rel. Stokes, 37 U.S. 524 (1838)
Hamilton, A. The Avalon Project : Federalist No 65. 7 Mar. 1788, https://avalon.law.yale.edu/18th_century/fed65.asp.
Constitution Annotated: ArtI.S3.C7.2 Doctrine on Impeachment Judgments. https://constitution.congress.gov/browse/essay/artI-S3-C7-2/ALDE_00000701/.
Constitution Annotated: ArtII.S4.4.8 President Bill Clinton and Impeachable Offenses. https://constitution.congress.gov/browse/essay/artII-S4-4-8/ALDE_00000696/.
Just look at the vile. malevolent, disgusting FACE of that POS Smith. As Abraham Lincoln said, anyone over 40 is responsible for his own face. His vacant, soul-less stare is like one who is ALREADY in the Hell he doesn't believe in, but will in fact be there.
The facts of this case are utterly irrelevant to the motive, which is to torpedo Trump’s chances of winning re-election. It is lawfare, plain and simple. Jack Smith, et al. couldn’t give a rat’s ass about winning a conviction of Trump, their Democrat masters told them to indict him for anything and everything and drag him into court as often and as inconveniently as possible. Hell, NY got a summary judgment and not one journalist or Democrat (same thing really) said “Hmmm, I thought we had due process in this country. Shouldn’t there be a trial before a guilty decision? Ah, it’s Trump, it’s fine!”